Evan Bariault delivers opening remarks to jurors for the trial between Clark County and three former county employees on May 5, 2021. The case is headlined by the involvement of former Washington Sen. Don Benton.
Troy Brynelson / OPB
The civil trial between Clark County and three former county employees has been four-and-a-half years in the making. Depending on the outcome, a cost could be hanging over taxpayers.
A jury will decide whether the county acted properly or improperly when it laid off staffers — including former state Sen. Don Benton — and dissolved its Department of Environmental Services in 2016.
The jury may then award monetary damages to one side or the other. Court officials expect closing arguments next week.
While the ex-workers’ legal costs are private, Clark County’s are supposed to be public information. Details of the county’s contract with insurers to offset attorneys’ costs or help pay for any monetary damages should also be public, according to government transparency advocates. But county leaders have been hesitant to release the figures, citing the pending outcome of the court trial.
Joni McAnally, a county spokesperson, told OPB the county won’t answer several questions about how tax dollars have been spent and could be spent in the future. County Manager Kathleen Otto did not comment.
Councilors Gary Medvigy, Julie Olson, and Karen Bowerman also did not respond to questions seeking information on how much the county has spent defending the civil litigation. Councilor Eileen Quiring O’Brien declined to comment in a text message.
Councilor Temple Lentz said she did not know the answers, but felt the questions should be answered.
“The questions you are asking don’t, for the most part, seem to me to be information the county should withhold,” Lentz said in an email. “I do think it should be released.”
Court records show the Seattle law firm Patterson Buchanan Fobes & Leitch began representing Clark County in the suit in 2017. McAnally and Otto wouldn’t say how much the county has paid over the years to the firm, nor would they answer questions about the county’s insurance.
“Clark County does not comment on current litigation,” McAnally said.
Lentz noted she would agree with withholding information “if our legal counsel has a valid reason for thinking any of that information could impact the outcome of a case.”
Whom a government agency contracts with and how much taxpayer money is spent on any contract is public information because it could impact the county’s ability to provide services to the community.
According to the Washington Coalition for Open Government, how much the county has spent on attorneys and its current insurance levels are not information that should be withheld because it has no bearing on the civil trial.
In Washington, a government can withhold information that may show an attorney’s “mental impressions, actual legal advice, theories, or opinions.”
“Invoices have nothing to do with legal advice that attorneys provide their clients. Rather, invoices are business notices for money owed for services rendered,” said George Erb, of the coalition. “How much Clark County is spending on any lawsuit, or how much Clark County is paying any law firm, is clearly in the public record.”
“Clark County residents have every right to know how much their county government is spending on attorneys so they can judge for themselves whether their government is acting wisely on their behalf,” Erb added.
Clark County incurred a $40,000 fine related to the case already. In March, Judge Gregory Gonzales ordered the county to pay for withholding hundreds of pages of documents in the case. The county’s law firm, however, stated it would absorb the cost.
With a decision expected soon, it’s possible a jury doesn’t see fit to impart any damages against Clark County. It’s also possible the decision asks one side pays for the other’s legal fees. But the questions of the county’s legal costs and potential liabilities will remain.
The county used to be part of the Washington Counties Risk Pool, which helps members adjust claims, manage insurance and provide risk management.
But that relationship ended in 2014. After the county settled for $10.5 million with two men wrongfully convicted of a 1993 rape, the county reportedly agreed to the men to pursue the risk pool for even more money.
The other counties then voted Clark County out of the pool. Derek Bryan, executive director of the Washington Counties Risk Pool, said the agency is aware of the county’s current lawsuit with Benton because some allegations occurred when the county was still a member.
“There’s a lot of questions still pending,” Bryan said of the lawsuit. “We don’t have all the answers on that and we’re going to learn a lot more in a short period of time.”
Other potential costly legal matters are on the horizon for the county as well.
The family of Kevin Peterson Jr., a Black man killed by Clark County Sheriff’s Office deputies during an attempted drug bust, intends to sue the county for his death. The family’s attorney notified the county in March.
The same attorney represents Jenoah Donald, another Black man killed by deputies during a traffic stop in February.
Correction: A previous version of this article misstated that County Manager Kathleen Otto would not answer questions. Otto did not comment.